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Has Canada’s super-secret eavesdropping agency spied on Canadians as it trolls the world for information? Maybe — but even the nation’s watchdog doesn’t know for sure.

Stephen Harper's government has failed to follow through with proposed changes to the National Defence Act that would clarify the mandate of Communications Security Establishment Canada (CSEC) and help its overseers police it, according to the agency's watchdog Robert Decary in his report to Parliament. (Sean Kilpatrick / THE CANADIAN PRESS)

Mon., Aug. 26, 2013

Has Canada’s super-secret eavesdropping agency illicitly targeted Canadians as it scours the global information commons for terrorists and other threats? The short answer is just maybe. But even the agency’s watchdog can’t be sure.

That’s the unsettling take-away from Commissioner Robert Décary’s annual report to Parliament on the Communications Security Establishment Canada. The civilian agency, which comes under the umbrella of National Defence and has 2,000 staff and a budget of more than $400 million a year, is tasked with collecting “foreign communication signals” that originate and terminate abroad, including email, phone calls and the like. The agency also protects the government’s computer and telecommunications networks, and assists the police and security services.

It is Canada’s version of the National Security Agency in the United States that is embroiled in a furor for keeping records on millions of Americans. One NSA program continuously collects billions of phone records. Another scours Internet providers such as Microsoft and Google, siphoning up audio, video, email, photographic and search usage. Even U.S. President Barack Obama acknowledges that Washington needs to “do a better job” of reassuring the public that they aren’t being spied on.

Here in Canada, Privacy Commissioner Jennifer Stoddart is also concerned about the extent to which we are being targeted by spy agencies. We just don’t know enough. And what we do know isn’t entirely reassuring.

For the most part Décary finds that Canada’s smaller agency scrupulously abides by the law, which prohibits it from eavesdropping on Canadians anywhere or anyone in this country, except incidentally and with approval from the minister of national defence and only in order to gather foreign intelligence. Décary cites 11 such cases in the past two years, all within the law.

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In general, CSEC Chief John Forster has “spared no effort to instill within CSEC a culture of respect for the law and for the privacy of Canadians,” Décary reports. Glitches aside, the agency’s operations are largely above board, Décary concludes. That’s a relief, given the secrecy that shrouds the organization.

Still, there’s no cause for complacency. Décary’s review unearthed “a small number of records” that “suggested the possibility that some activities may have been directed at Canadians, contrary to law.” That’s not good. Worse yet, “a number of CSEC records relating to these activities were unclear or incomplete,” he found. Sloppy? Or sanitized?

“After in-depth and lengthy review, I was unable to reach a definitive conclusion about compliance or non-compliance with the law.”

Décary’s dry language, and the deliberate lack of detail in his unclassified report, should not mask the seriousness of this. That he was unable to get to the bottom of the matter even after an exhaustive probe is unsettling. Members of Parliament should want to know more about this apparent accountability gap, and how it might be fixed.

They should also be asking pointed questions when CSEC chooses not to heed the watchdog’s advice. CSEC has implemented most of the reforms that Décary and his predecessors have urged in classified reports over the past 15 years to ensure that the agency complies with the spirit of the law — acting on 127 out of 138. But that still leaves an 8 per cent gap. Just where has CSEC balked, and why? That, too, ought to pique MPs’ interest, given that the watchdogs felt that reforms were warranted.

Finally, Décary noted that he was “deeply disappointed” with the Conservative government for failing to follow through with proposed changes to the National Defence Act that would clarify the agency’s mandate and help its overseers police it. This, too, is an issue that deserves airing when Parliament resumes.

CSEC operates in the shadows. Its rules should be clear. Its records should be impeccable. And its oversight must be rigorous.

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